WASHINGTON – A little-noticed document issued by President Donald Trump has put advocates of medical marijuana on edge, raising questions about the long-term security of programs now authorized in 29 states and the District that have broad public backing.
In a “signing statement” that accompanied Trump’s signature on the bill passed this month to keep the government open, the president noted a handful of objections on legal grounds, including to a provision that prohibits his administration from interfering with state-run medical marijuana programs.
White House aides indicated that none of Trump’s objections to Congress’s work signaled immediate policy changes. But given how vocal Attorney General Jeff Sessions has been toward relaxing marijuana restrictions, those who support the burgeoning industry are worried about what could come next.
“It just creates a lot of uncertainty, and that uncertainty is deeply concerning for patients and providers,” said Michael Collins, deputy director of the Drug Policy Alliance, an organization that has sought to roll back the nation’s war on drugs. “We had thought medical marijuana wasn’t really in play in terms of a crackdown.”
Such concerns are being voiced more broadly about the direction of marijuana policy under the new leadership at the Justice Department.
Sessions last week directed federal prosecutors to get significantly tougher on drug defendants than under the Obama administration. And a task force launched by Sessions is looking at changes in enforcement particularly regarding marijuana, a drug that remains illegal on the federal level despite significant movement in numerous states in recent years to loosen restrictions.
The eight states that have legalized marijuana for recreational use could be at greater risk for federal intervention than those that have only approved dispensing medical cannabis or cannabis-infused products to patients with a doctor’s recommendation.
As a candidate for president, Trump repeatedly voiced support for medical marijuana, a concept that has been increasingly embraced by fellow Republicans at the state level. Of the 29 states that have authorized programs, Trump prevailed in last year’s election over Democrat Hillary Clinton in nine of them.
Meanwhile, a Quinnipiac poll last month
found that 94 percent of Americans – including 90 percent of Republicans – supported allowing adults to legally use marijuana for medical purposes if their doctors prescribe it.
White House press secretary Sean Spicer said earlier this year that he expects states to be subject to “greater enforcement” of federal laws against marijuana use, though he also said Trump sees “a big difference” between use of marijuana for medical purposes and for recreational purposes.
Sessions, however, said at an appearance in Richmond, earlier this year, that medical marijuana “has been hyped, maybe too much.”
A Justice Department spokesman declined to discuss what future steps might be taken related to medical marijuana but said the provision in the spending bill is of concern to officials.
“The Department of Justice must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives,” said spokesman Ian Prior, who wouldn’t discuss the issue further.
Justin Strekal, political director for the National Organization for the Reform of Marijuana Laws, said the May 5 signing statement is troubling, even if a federal crackdown is not in the offing, because it could have “a chilling effect on a nascent industry.”
Of particular concern, he said, is the impact it could have on investors in dispensaries in states where programs are just coming on line. A prosecution of a single business in one state could have a devastating impact in that regard, he added.
The provision in question, which has been part of federal law since late 2014, prohibits the Justice Department from spending money to interfere with state medical marijuana programs. It was co-authored by Rep. Dana Rohrabacher, R-Calif., who, by his own description, is “a very strong supporter” of Trump.
“I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed,” Trump wrote in the signing statement.
Signing statements became prevalent under President George W. Bush and have often been used to preserve objections rather than to signal new action.
President Barack Obama continued the practice, routinely citing provisions in spending bills that he said conflicted with authority granted to him under the constitution.
Trump also objected on constitutional grounds to several other sections of the first spending bill he signed, including one related to a program that helps historically black colleges and universities get low-cost construction loans. That prompted an outcry from African American lawmakers, prompting Trump to release a statement about his commitment to HBCUs.
Tom Angell, founder of Marijuana Majority, said comments from Trump and the Justice Department on medical marijuana “doesn’t necessarily mean a crackdown is coming, but it’s a concerning signal.”
“Essentially [Trump is] saying he reserves the right to ignore this congressionally approved provision,” Angell said.
If the administration moves in that direction, it won’t be without a fight, Rohrabacher said.
The congressman, who has used cannabis himself to ease pain from severe arthritis in his shoulders caused by years of surfing, said he’s confident his side would prevail in court because Congress clearly has “the power of the purse.”
Rohrabacher said it appears that members of Trump’s administration are working to “reposition” him on the issue of medical marijuana.
“I think there are a lot of people running around trying to paint the president into a corner on this,” Rohrabacher said, adding that he is eager to talk to Trump about it directly.
In August 2016, the U.S. Court of Appeals for the 9th Circuit ruled a similar provision passed by Congress prevented the Justice Department from spending money on prosecutions in states where medical marijuana was legal – so long as those being prosecuted abided by state law.
More broadly, James Cole, a deputy attorney general in the Obama administration, had directed prosecutors to enforce all federal drug laws – even in places that had legalized marijuana – but said they should look to states’ regulatory systems to determine whether their intervention was necessary.
Cole wrote that federal authorities should essentially stay out of states that had robust regulatory systems in place.
Cole’s memo is among the policies now being actively reviewed by the new leadership at the Justice Department.
The issue of medical marijuana will need to be revisited again by Congress in coming months. The provision sponsored by Rohrabacher expires on Sept. 30, at the end of the federal fiscal year, and would have to be adopted again to stay on the books.
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